P. v.
Filed 7/11/12 P. v. Martinez CA4/1
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
EDGAR MARTINEZ,
Defendant and Appellant.
D060559
(Super. Ct.
No. SCD228494)
APPEAL from
a judgment of the Superior Court
of
County, Jeffrey F. Fraser, Judge. Affirmed.
I.
INTRODUCTION
A jury
found Edgar Martinez guilty of robbery
(Pen. Code, § 211)
title="">[1] (count 1); assault with a firearm (§ 245,
subd. (a)(2)) (count 2); making a criminal
threat (§ 422) (count 3); burglary (§ 459) (count 4); and
(d)(2)) (count 5). As to count 1, the
jury found that Martinez personally
used a firearm within the meaning of section 12022.53, subdivision (b). As to all counts, the jury found that Martinez
personally used a firearm within the meaning of section 12022.5, subdivision
(a). The trial court sentenced Martinez
to an aggregate term of 15 years.
On appeal,
Martinez contends that the trial court erred in admitting statements that a
witness made to law enforcement officers,
as prior consistent statements, pursuant to Evidence Code sections 1236 and
791. We conclude that the trial court
did not abuse its discretion in admitting the statements and affirm the
judgment.
II.
FACTUAL BACKGROUND
A. The People's
evidence
1.
In July
2010, Matthew Atencio worked at Super Canna, a medical marijuana dispensary
located in San Diego. On July 6, at around 11:00 a.m., a man who Atencio later identified as Martinez
entered the dispensary. Martinez
looked at some marijuana, said he did not want anything because he was in a
hurry, and left.
After Martinez
left, Atencio noticed that his cell phone was missing. A short time later, Martinez
called the dispensary using Atencio's cell phone. Martinez
apologized to Atencio and explained that he had taken Atencio's cell phone by
mistake, thinking that it was his. About
five minutes later, Martinez
returned to the dispensary with Atencio's cell phone. Martinez
said that he wanted to look at the marijuana one more time.
As Atencio
was weighing some marijuana that Martinez
had selected, he felt a gun against his neck.
He looked in Martinez's
direction. Martinez
said, "Don't look at me. Look at the ground." Martinez
forced Atencio to lie face down in a corner of a small nearby "grow
room." Martinez
then opened the door and let some other people into the dispensary. After a while, Martinez
escorted Atencio into the dispensary's office.
Martinez was still pointing
a gun at Atencio. Martinez
asked Atencio if he had any weapons.
Atencio replied that there was a shotgun in the office, and handed the
gun to Martinez.
Martinez
also told Atencio that if he contacted the police or tried to get Martinez
in trouble, Martinez would find
Atencio's family, kill them, and kill Atencio.
Atencio begged Martinez not
to kill him. Martinez
said, "You're not going to call the police, right, if I don't shoot
you?" Atencio promised Martinez
that he would not call the police. Martinez
said, "Well, you don't call the police, and I won't come find you. And I'm going to take this ID to make
sure." Martinez
took Atencio's wallet and left.
After the
incident, Atencio looked through the dispensary to see what had been
taken. Atencio discovered that a
television set, a few laptop computers, a video game console and some games,
approximately six pounds of marijuana, a shotgun, and a taser were among the
missing items.
2.
Video
cameras located outside the dispensary captured portions of the robbery. The video recording revealed that the vehicle
used in the robbery appeared to be a forest green Ford F-150 truck with an
airbrush design on the tailgate. Three
days after the robbery, on July 9, 2010,
a police officer saw a similar truck travelling on a highway. The officer stopped the truck and detained
the driver, Brissa Floriano.
An officer
transported Floriano to police headquarters.
San Diego Police Department Detective Maria Estrella interviewed
Floriano. As discussed in greater detail
in part III., post, Floriano told
Detective Estrella that she had driven Martinez,
who was her cousin, and his friend Emilio Marquez, to the dispensary on the day
of the robbery. Floriano said that Martinez
and Marquez entered the dispensary and stole some items from the establishment
while Floriano remained in the truck.
Police arrested
Marquez at a friend's house approximately a week later, and recovered a laptop
that had been stolen from Super Canna inside the friend's house. Police arrested Martinez
a few months later.
B. The defense
Martinez's
mother testified that Martinez
lived with her at the time of the robbery.
Martinez's mother maintained that although Martinez had left the house
at various points during the day in question, he was never gone for more than a
half hour. Martinez's
mother had not seen any suspicious items in her house after the robbery.
III.
DISCUSSION
in admitting statements that Floriano made to law enforcement officers as prior
consistent statements
Martinez
contends that the trial court erred in admitting Floriano's statements to law
enforcement officers as prior consistent statements pursuant to Evidence Code
sections 1236 and 791.
name="_ftnref3" title="">[3] We apply the abuse of discretion standard of
review to Martinez's claim. (See People
v. Alexander (2010) 49 Cal.4th 846, 908.)
A. Governing law
Evidence
Code section 1236 provides, "Evidence of a statement previously made by a
witness is not made inadmissible by the hearsay rule if the statement is
consistent with his testimony at the hearing and is offered in compliance with
Evidence Code
section 791 provides in relevant part:
"Evidence of a statement previously made by a witness that is
consistent with his testimony at the hearing is inadmissible to support his
credibility unless it is offered after:
"[¶] . . . [¶]
"(b) An express or implied charge has been made
that his testimony at the hearing is recently fabricated or is influenced by
bias or other improper motive, and the statement was made before the bias,
motive for fabrication, or other improper motive is alleged to have
arisen."
It is well established that if
the defense suggests through cross-examination that a witness is motivated to
testify in a certain manner in order to obtain the benefits of the witness's
agreement with the prosecution, the prosecution may offer statements that the
witness made to law enforcement that are consistent with the witness's trial
testimony, and that were made prior to the witness entering into the agreement
with the prosecution, under Evidence Code section 791, subdivision (b). (See, e.g, People v. Andrews (1989) 49
Cal.3d 200, 210 (Andrews);
1084, 1107 [concluding trial court properly admitted witness's extrajudicial
statement that was consistent with trial testimony where defendant presented
"evidence of [witness's] favorable plea bargain" and witness's
consistent statement was made prior to plea bargain].)
In Andrews,
supra, 49 Cal.3d at page 210, the
Supreme Court concluded that a trial court had not erred in admitting, as a
statement that a witness had made to police prior to the witness obtaining a
"deal" with the prosecution.
The Andrews court reasoned:
"Defense counsel cross-examined [witness]
extensively about the alleged 'deal' he had made with the prosecution in 1983,
four years after his initial statement to the police. Specifically, counsel questioned [witness]
regarding the nature of the charges to which he had pleaded guilty, the sentence
he was to receive, and the fact that sentencing had been continued until after
defendant's trial. 'The mere asking of questions may raise an implied charge of
an improper motive . . . .'
[Citation.] Here, defense
counsel's questioning of [witness] raised an implicit charge that the 'deal'
provided [witness] with an additional motive to testify untruthfully. This, in turn, entitled the prosecution to
show that [witness's] testimony was consistent with the recorded statement he
gave shortly after his arrest but before the 'deal' was consummated, that is,
before the subsequent, specific motive to fabricate arose." (Ibid.)
B. Factual and procedural background
1.
the admissibility of Floriano's statements to law enforcement officers
Prior to trial, the People filed
a trial brief in which they stated that the defense would likely attempt to
cross-examine Floriano in a manner that would suggest that her testimony was
fabricated. The People stated that if
the defense engaged in this type of cross-examination at trial, the People
should be permitted to introduce statements that Floriano made to law
enforcement officers in a taped interview, in order to rehabilitate Floriano's
trial testimony, pursuant to Evidence Code section 791, subdvision (b).
At a
hearing on the People's request, the trial court noted that it was likely that
the defense would attempt to attack Floriano's credibility given the fact that
Floriano had entered into a cooperation agreement with the prosecutor. The trial court ruled that if the defense
were to attempt to attack Floriano's credibility, the court would allow the
prosecutor to introduce statements that Floriano made to law enforcement
officers.
2.
Floriano's trial testimony
On direct
examination, Floriano testified that she drove Martinez and Marquez to the
dispensary in her truck on the day of the robbery. According to Floriano, she did not know that
the two intended to rob the dispensary when she stopped her truck behind the
dispensary. Floriano said that Martinez
went into the dispensary and that approximately 20 minutes later, Marquez went
into the dispensary. Marquez returned to
the truck several times with various "items" from the dispensary. Floriano explained that she began to
"figure[] out," that Martinez and Marquez were "taking
stuff." Floriano saw a flat screen
television, a duffel bag, and "a lot of stuff" in the truck. Martinez and Marquez eventually got back into
the truck and the three left the scene.
Floriano
testified that she had pled guilty to robbery in connection with the incident,
and that she was facing a sentence of up to three years in prison. Floriano admitted that she had entered into
an agreement with the prosecutor pursuant to which she promised to tell the
truth and in exchange, a judge would consider her cooperation in this case in
sentencing her.
Floriano
also testified that on the day she was arrested, she made a statement to a
detective. Floriano explained that she
initially lied to the detective but ultimately told the detective the truth
about her involvement in the crimes.
During
defense counsel's cross-examination of Floriano, the following exchange
occurred:
"[Defense counsel]:
Ms. Floriano, you have a contract with the district attorney's office;
isn't that true?
"[Floriano]:
It wasn't quite a contract. It
was more like―I'm going
to say no.
"[Defense counsel]:
Did you―
"[Floriano]:
I agreed to come in, but it wasn't―
"[Defense counsel]:
It wasn't in writing?
"[Floriano]:
Yeah.
"[Defense counsel]:
It was in writing?
"[Floriano]:
Uh-huh.
"[Defense counsel]:
You signed a contract?
"[Floriano]:
Okay.
"[Defense counsel]:
Did you?
"[Floriano]:
Yes.
"[Defense counsel]:
And it's true that you have a fear of going to prison, is it not?
"[Floriano]:
Yes.
"[Defense counsel]:
And it's true you have a fear of losing your kid, is it not?
"[Floriano]:
Yes."
Shortly
after this exchange, defense counsel stated that he wanted to "talk to
[Floriano] about some of the stories that you've told."
Defense counsel
also asked the following questions concerning Floriano's cooperation agreement
with the prosecutor during re-cross-examination:
"[Defense counsel]:
Now, you said that the benefits―that you could lose the benefits
according to that contract[,] correct?
"[Floriano]:
Yes.
"[Defense counsel]:
If you don't tell the truth, according to the district attorney[,]
correct?
"[Floriano]:
Yes.
"[Defense counsel]:
This man can decide whether or not you get the benefits of this
agreement or not[,] correct?
"[Floriano]:
Correct.
"[Defense counsel]:
And the benefits you hope to get are the benefits that allow you to walk
in and out of the front door of this courtroom[,] correct?
"[Floriano]:
Correct.
"[Defense counsel]:
You don't want to walk out the back door[,] correct?
"[Floriano]:
Of course."
During
re-cross-examination, defense counsel asked Floriano, "And between whether
it's you or [Martinez], obviously the choice you've made today is for you[,]
correct? Your benefit?"
3. The videotape of Floriano's interview with law enforcement officers
Detective
Estrella testified that she interviewed Floriano at police headquarters on July
9, 2010. The People played a videotape
of the interview at trial, after Floriano had finished testifying and had been
cross-examined. During the first portion
of the interview, Floriano told police that she had loaned her truck to
Martinez on the day of the robbery and that she had not driven to the
dispensary. During the latter portion of
the interview, Floriano testified in a manner consistent with her trial
testimony, stating that she had driven Martinez and Marquez to the dispensary
and that Martinez and Marquez had robbed the establishment while she remained
in her truck.
C. Application
Martinez
contends that the trial court erred in admitting the statements that Floriano
made to Detective Estrella because "defense counsel neither alleged that
[Floriano's] trial testimony was recently fabricated or that unfounded claims
of bias or reasons for providing false testimony had been established."
On
cross-examination, defense counsel asked Floriano questions about her
"contract" with the prosecutor and then proceeded to ask her whether
she had a "fear of going to prison."
Defense counsel stated that he wanted to talk about some of the
"stories" that Floriano had told.
On re-cross-examination, defense counsel asked Floriano a series of
questions concerning her cooperation agreement with the prosecutor in which
defense counsel implied that Floriano would be willing to testify in a manner
favorable to the prosecution in order to obtain the benefits of her agreement
with the prosecutor, and to avoid going to prison.
Floriano's trial testimony was motivated by a desire to obtain the benefits of
her cooperation agreement with the prosecutor.
We conclude that in view of the cross-examination of Floriano, the trial
court did not abuse its discretion in admitting Floriano's statements to law
enforcement officers as prior consistent statements pursuant to Evidence Code
sections 1236 and 791, subdivision (b).
(See, e.g., People v. Andrews,
supra, 49 Cal.3d at p. 210 [trial court properly admitted witness's
statement to police as prior consistent statement after defense raised implicit
charge that witness was motivated to testify untruthfully in order to obtain
"deal" with the prosecution].)
IV.
DISPOSITION
The
judgment is affirmed.
AARON, J.
WE CONCUR:
McCONNELL, P. J.
HUFFMAN, J.
name="_ftn1" title="">[1] Unless otherwise specified, all
subsequent statutory references are to the Penal Code.
name="_ftn2" title="">[2] Martinez also filed a petition for
habeas corpus, which we summarily
simultaneously with this opinion.
